Judge: Lee S. Arian, Case: 21STCV25428, Date: 2023-12-05 Tentative Ruling

Case Number: 21STCV25428    Hearing Date: December 5, 2023    Dept: 27

Tentative Ruling

Judge Lee S. Arian, Department 27

HEARING DATE:     December 5, 2023                              TRIAL DATE:  February 16, 2024

CASE:                         Dorotea Henriquez v. Walmart Claims Services, Inc., et al.

CASE NO.:                 21STCV25428

MOTION FOR PROTECTIVE ORDER

MOVING PARTY:               Plaintiff Dorotea Henriquez

RESPONDING PARTY:      Defendant Walmart Inc.

I.          INTRODUCTION 

On July 9, 2021, Dorotea Henriquez (“Plaintiff”), filed this action against Walmart Claims Services, Inc. (“Walmart Claims”), a corporation, Walmart Inc. (“Walmart”), a corporation, Lorraine Herrera (“Herrera”), an individual, and DOES 1-50 (collectively, “Defendants”) for injuries arising from a June 30, 2021 slip and fall on Defendants’ premises. 

On February 3, 2022, Plaintiff provided sworn discovery responses in which she indicated that, in the ten years prior to the incident, she did not have any prior complaints of pain to the same body parts allegedly injured at Walmart.

On February 9, 2023, Defendants’ retained Expert, Ronald Kvitne, was deposed and testified regarding Plaintiff’s pre-existing right knee, right shoulder, right wrist, and back injuries. The records contained an 11-year-old note suggesting a prior injury to Plaintiff’s knee, which is at issue in the current litigation. Based on these records, Dr. Ronald Kvitne concluded that Plaintiff’s knee injury claimed in the current lawsuit was the result of the prior injury.

On February 27, 2023, Plaintiff filed a motion for protective order arguing that Defendants should be ordered to destroy improperly obtained medical records from eleven of Plaintiff’s medical providers because Defendants never served Plaintiff with notice of the deposition subpoenas.

On March 28, 2023, Plaintiff moved for a protective order under which improperly subpoenaed medical records would be destroyed; Plaintiff simultaneously objected to Defendants’ request to reopen discovery so that these records could be properly subpoenaed. The Court granted the Plaintiff’s protective order motion but allowed Defendants to re-serve properly tailored subpoenas to health care providers.

On April 7, 2023, Defendants served new subpoenas to all of the same providers previously subpoenaed. No objections were made by Plaintiff and Defendants obtained all of the same records previously disposed of as a result of the Courts March 28th ruling.

On October 3, 2023, Plaintiff filed this motion seeking to exclude Dr. Kvitne from using improperly subpoenaed medical records as a basis for forming any opinion.

On November 11, 2023, Defendants filed an opposition.

On November 21, 2023, Plaintiff filed a reply.

III.       DISCUSSION

            Plaintiff relies on three bases to support her Motion: (1) a party should not use his own wrong to advantage; (2) Evidence Code 801 refers to precluding an expert from using specific otherwise useable information as a basis for his opinion; and (3) a court may impose evidentiary sanctions under Code of Civil Procedure Section 2023.030.  

           Plaintiff’s equitable argument is a bit ironic.  Defendant contends that Plaintiff specifically denied that she had any injuries within the last 10 years to, among other body parts at issue here, her knee.  Yet, through the material that Defendant subpoenaed and Dr. Kvitne relied, she did, in fact, have an injury to her knee within that time period.  The Court is not persuaded to make an equitable order in favor of Plaintiff in these circumstances. 

  Further, Section 801 does little to help Plaintiff.  Section 801 states that an expert may provide an opinion “based on matter (including his special knowledge, skill, experience, training and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is a type that reasonably may be relied upon by an expert in forming an opinion upon which the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.”  Thus, Section 801 is generally a rule expanding on the basis for testimony.  The final phrase limiting testimony is narrow in scope, applying to preclusion by law.  But no law prohibits testimony here.  In fact, the Court specifically gave Defendant an opportunity to legally obtain the records upon which Dr. Kvitne will testify. (Apparently in an effort to demonstrate the breadth of the medical records that were subpoenaed, Plaintiff makes reference to certain aspects of the records, such as “vaginal burning,” that seem to have little relevance to this case; simply because Dr. Kvitne can testify does not mean that all aspects of Plaintiff’s medical records will be covered by that testimony.  Irrelevant information will still be excluded)

  Finally, the fact that the Court can, in appropriate cases, impose evidentiary sanctions does not make such sanctions appropriate here. Again, the Court previously granted a protective order but still allowed the Defendants to re-serve properly tailored subpoenas to health care providers.  So, Dr. Kvitne can rely on those records in his testimony.  Moreover, Plaintiff did not object to the new 4/7/2023 subpoenas requesting the same records that were destroyed.

IV.       CONCLUSION

           Plaintiff’s motion for a protective order is DENIED.

Non-moving party to give notice.

Dated:   December 5, 2023                             ___________________________________

                                                                                    Lee S. Arian

                                                                                    Judge of the Superior Court

            Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.